I do not question the fact that my learned brother has written the law according to its letter. I am, however, as I have been since the enactment of the statute concerning preliminary examinations in 1905, of the opinion that, despite its various minor amendments, it is as now written (Sec. 3848, R.S. 1919; Laws 1925, p. 195), in violation of the Constitution.
In prescribing the two methods for the prosecution of crime the Constitution is exclusive and is not merely a course of procedure but a grant of power; as such it is mandatory. The addition of the method by information was added to that by indictment to facilitate the administration of the criminal law in affording a means whereby persons charged with crime might be more speedily tried. The right to a preliminary examination is purely permissive (Sec. 17, *Page 794 Art. XV, Constitution), and has no reference to or connction with the constitutional provisions concerning informations or indictments so far as the time and manner of their filing is concerned. The filing of an information is a duty devolving upon the prosecuting attorney, and in the exercise of this duty he is clothed with all the power necessary to render his acts effective. While prosecuting attorneys are not named in the Constitution the nature of their duties is such that in public estimation the powers conferred upon them rise to the importance of a constitutional provision. To hold, therefore, as the letter of the statute indicates and as the majority opinion declares, the power of the prosecuting attorney is hampered and obstructed, and instead of his act in that behalf rising to the dignity and the permanency of an indictment, as was intended, it is subordinated to the acts of a justice of the peace. If the latter, a mere creature of the statute, in the profundity of his legal lore and the amplitude of his wisdom, finds that in his opinion, there is cause to believe that the defendant should be held or admitted to bail or answer such charge as may be preferred against him, then the constitutional power of the prosecuting attorney may be exercised. Otherwise, not.
The resultant effect of holding this statute valid is to minimize the constitutional power of the prosecuting attorney and magnify that of a justice of the peace; lifting him from the trial of petty civil cases and misdemeanors to the altitude of a trier of the facts in criminal cases of the gravest magnitude. I do not think I have, in this opinion, misinterpreted either the tenor or the purport of the majority opinion. It holds, first, that a preliminary examination must be accorded the one charged with a felony; and second, in the absence of such a procedure that the prosecuting attorney has no power to file an information. From whence did the law-making power derive this puissance that enables it to say that a constitutional power for the prosecution of criminals by information shall be subject to the judgment of a justice of the peace?
It is somewhat elementary that a statute, from the title indicating its purpose, to the last line of its subject-matter, must conform to the requirements of the Constitution. While this requirement is essential to the protection of the rights of individuals in civil cases, it is much more so in criminal cases, in which it is to the interest of the entire people, not only that statutes shall conform to the Constitution, but that they shall be so read that the law may be effectively administered and that those charged with crime may not, through technicalities, go unwhipt of justice. I am of the opinion, therefore, that this statute should be held invalid in disregarding the Constitution by attempting to prescribe an unauthorized limitation upon the filing of informations. *Page 795